Fair Work Act 2009

s.424 - Application for an order suspending or terminating protected industrial action - endangering life, etc.

Application to suspend or terminate protected industrial action - endangering life etc.

[1] Broadspectrum (Australia) Pty Ltd (Broadspectrum) and the Transport Workers' Union of Australia (TWU) are currently negotiating the terms of the Broadspectrum WA CS&CS TWU Enterprise Agreement 2018.

[2] On 7 August 2018 the TWU gave Broadspectrum a notice of protected industrial action (Notice).[1] That Notice, or rather the protected industrial action set out in that Notice, is now the subject of Broadspectrum's application, which it filed with the Fair Work Commission on Friday, 10 August 2018 (the Application).

[3] The Application is for an order that would, for a period of two months, suspend protected industrial action being taken by members of the TWU employed within Broadspectrum's Court Security and Custodial Services operations. The basis of the Application is that the protected industrial action, has threatened, is threatening or would threaten to endanger the life, or personal safety, health or welfare of the population or part of it.[2]

[4] The Application was the subject of an urgent hearing before me on Friday, 10 August 2018 with the protected industrial action due to commence at 05:00 hours on Monday, 13 August 2018. The Application was opposed by the TWU.

[5] At the hearing the parties were advised that I would reserve my decision regarding the Application but was cognisant of the timeframe and would issue my decision before 5.00am on Monday, 13 August 2018.

[6] I have considered all that has been put in the proceedings. I note that witness statements and other evidence were tendered by the Applicant, the Respondent tendered a document, and submissions were made by both sides. I am satisfied that the threatened, impending, or probable protected industrial action by the TWU would threaten the personal safety or health or the welfare of part of the population.

[7] That part of the population comprises the general public who require court services and those staff that work at the metropolitan and regional court facilities, which are operated by the Department of Justice and which are worked at by relevant employees of Broadspectrum in Western Australia, the general public who require medical services in Western Australia where the relevant employees of Broadspectrum provide hospital transfers and sits in addition to the personnel who provide services in those facilities, and the prisoners themselves.

[8] I consider that it is appropriate in all the circumstances that the protected industrial action is suspended. The period of suspension will take effect from 18:00 hours on the date of this decision until 18:00 hours on Saturday, 13 October 2018. I will make an order[3] to this effect that will be issued concurrently.

[9] My reasons for this decision will be published as soon as practicable. Accordingly, this matter has been determined by me within the time period allowed for in the Fair Work Act 2009 (Cth).

Mr J Snaden, of Counsel at the Victorian Bar, for the Applicant.

Mr M Kelleher, Special Counsel at Clayton Utz, for the Applicant.

Ms R Cosentino, Counsel at John Toohey Chambers, for the Respondent.

Mr J Cutrali, Industrial Officer at Transport Workers' Union of Australia, for the Respondent.

[1] Exhibit A2 Notice of Industrial Action.

[2] s 424(1)(b) and (c) of the Act.

[3] PR609847.

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